29 November 2010

TID-BIT: Provocative Provocation

I, for one, am pleased we got rid of the partial provocation defence and instead left matters of mitigation for judges in sentencing. The defence was plagued with uncertainty, complication and latent prejudice.

It's interesting therefore to see the Canadian Supreme Court response to some of these problems. They had to consider whether the allegedly provocative act -- a woman's sexual involvement with another man after the couple had separated -- was sufficient to form a foundation for a provocation defence. It wasn't.

[18] The common law defence of provocation was adopted and codified in the Canadian Criminal Code from its inception in 1892. The wording of s. 232 remains substantially unaltered. The same cannot be said of the social context in which it is embedded. The continued appropriateness of the defence has been a source of controversy, both in Canada and abroad. Some commentators and reviewing bodies have recommended that the defence be abandoned altogether, leaving provocation, when relevant, as a factor to be considered in sentencing. For a discussion of such reform proposals in Canada and elsewhere, see D. E. Ives, “Provocation, Excessive Force in Self-Defence and Diminished Responsibility”, in Law Commission of Great Britain, Partial Defences to Murder: Overseas Studies, Consultation Paper 173 (App. B) (2003), 73, at pp. 78-81; Australia, Victorian Law Reform Commission, Defences to Homicide: Final Report (2004); New Zealand Law Commission, The Partial Defence of Provocation, Report 98 (2007).

[19] Parliament has not chosen this course and the defence continues to exist in Canada. This does not mean, however, that the defence in its present articulation should not continue to evolve to reflect contemporary social norms, and in particular, Charter values. Just as at common law the notion of an “insult ... sufficient to deprive an ordinary person of the power of self-control”, now codified under s. 232, is not frozen in time. By incorporating this objective element, the defence of provocation is necessarily informed by contemporary social norms and values. These include society’s changed views regarding the nature of marital relationships and the present reality that a high percentage of them end in separation.

2 comments:

Anonymous
said...

What about this for a “TID-BIT”?

Instructive, informative for the university setting -

“[201] I make some final comments. This matter has already involved considerable time, effort and resources for each of Ms Bell and the University. I accept that my decision may frustrate both, as it necessarily prolongs that process. At the same time, and given the narrower range of issues on which Mr Taylor, for Ms Bell, focussed at the hearing of this judicial review application — relative to the far wider range of issues that at various times have been raised between the parties — I would hope that it may be possible for the parties to resolve this matter without the need for a further extensive hearing by the DAC. I appreciate that issues of principle are involved. At the same time, a measure of pragmatism by all involved may help produce a satisfactory outcome.”

Course Outline

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.